Chapter 2: Sources of Intl Law

Where do you find Domestic Laws?

Where do you find Domestic Laws?

found in statue books and in collections of court decisions

Classifications of Sources

Formal Sources

Material Sources

Formal Sources

Various processes by which rules come into existence, such as Legislation, treaty-making, Judicial decision making, practice of state

Material Sources

This identifies what the obligations are

• State practice

• Un Resolutions

• Treaties

• Judicial decision

• Writing of juris

Art. 38 (1) of the Statue of the Intl. Court of Justice

1. International conventions

2. International custom

3. General principles of law recognized by civilized nations

4. Subsidiary means for determination of rules of law

International conventions

establishing rules expressly recognized by contesting states

International custom

1. evidence of a general practice accepted as law

Subsidiary means for determination of rules of law

1. Judicial decisions

2. Teachings of the most highly qualified publicists

Restatement of Foreign Relations Law of the US

1. Customary Law

2. International agreement

3. General principles common to the major legal system

Sources of International Law

1. Custom

2. Treaties

3. International agreements

4. Generally recognized principles of law

5. Judicial decisions

6. Teachings of highly qualified publicists

Custom or Customary Law

A general and consistent practice of states followed by them from a sense of legal obligation

Elements of Custom/Customary Law

Material factor—how state behaves

Elements of Practice of sates or usus

1. Duration—may be either short or long; not the most important element

2. Consistency—continuity and repetition

3. Generality of the practice of states—uniformity and generality of practice need not be complete but it must be substantial

Opinio Juris

belief that a certain form of behavior is obligatory

Dissenting states: subsequent contrary practice

• are bound by custom unless they had consistently objected to it while the custom was merely in the process of formation

• possible that after a practice has been accepted as law, contrary practice might arise

Equity

• When accepted, is an instrument whereby conventional or customary law may be supplemented or modified in order to achieve justice

• Where 2 parties have assumed an identical or a reciprocal obligation, one party which is engaged in a continuing non-performance of that obligation should not be permitted to take advantage of a similar nonperformance of that obligation by the other party

• The Court’s recognition of equity as part of international law is in no way restricted by the special power conferred upon it to decide a case \n

ex aequo et bono

Latin for "according to the right and good,"

Kinds of Equity

1. Intra legem

2. Praeter Iegem

3. Contra legem

Intra legem

within the law; the law is adapted to the facts of the case

Praeter legem

beyond the law; used to fill the gaps within the law \n

Contra legem

against the law; refusal to apply the law which is seen as unjust

UN Resolutions

generally considered merely recommendatory but if they are supported by all the states, they are an expression of opinio juris communis

Soft Law

Non-treaty Agreementsǁ; international agreements not concluded as treaties and therefore not covered by the Vienna Convention on the Law of Treaties

Administrative Rules

guide the practice of states in relation to international organizations